James v Judith Ann Quinlan as trustee for the Quinlan Family Trust

[2025] WASC 261

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   JAMES v JUDITH ANN QUINLAN as trustee for THE QUINLAN FAMILY TRUST [2025] WASC 261

CORAM:   HOWARD J

HEARD:   19 JUNE 2025

DELIVERED          :   19 JUNE 2025

PUBLISHED           :   1 JULY 2025

FILE NO/S:   CIV 1569 of 2025

EX PARTE

KENNETH ROGER JAMES

First Plaintiff

JOAN HASKER JAMES

Second Plaintiff

JUDITH ANN QUINLAN as trustee for THE QUINLAN FAMILY TRUST

Defendant

Catchwords:

Practice and Procedure - Ex parte application for leave to issue a writ of summons for service outside Australia under O 5 r 9 of the Rules of the Supreme Court 1971 (WA) - Application granted

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

First Plaintiff	:	Mr E Ferreira
Second Plaintiff	:	Mr E Ferreira

Solicitors:

First Plaintiff	:	Lewis Kitson Lawyers
Second Plaintiff	:	Lewis Kitson Lawyers

Case(s) referred to in decision(s):

Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd [2024] WASC 254

HOWARD J:

(This judgment was delivered extemporaneously on 19 June 2025 and has been lightly edited from the transcript. The publication of these reasons was delayed by matters beyond the Court's control).

1. By an application made by Originating Motion filed on 30 May 2025, the plaintiffs seek leave for a writ of summons to be issued out of this Court for service in the United States of America: that is, outside of Australia under Order 5 rule 9 of the Rules of the Supreme Court 1971 (WA).

2. The application is supported by affidavits of Kenneth Roger James, the first plaintiff:

   (a)made 30 May 2025 and filed 3 June 2025; and

   (b)made and filed on 17 June 2025.

3. The plaintiffs have also filed written submissions on 17 June 2025.

4. In CITIC Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd,[1] I set out the principles which I understand apply to this Court's consideration of the granting of leave under O 5 r 9. I do not consider I need to set those principles out again here.

5. The writ in respect of which leave to issue is sought appears as 'KJR‑12' to the second affidavit of Mr James (Proposed Writ).

6. The Proposed Writ is indorsed with a statement of claim.

7. In the broad, the plaintiffs allege in the statement of claim that:

   1.they and the defendant entered into a contract, by which the plaintiffs would sell land to the defendant in Applecross in this state;

   2.following that initial contract, there were variations made to it;

   3.the defendant breached that contract by failing to pay certain amounts by certain dates;

   4.the plaintiffs issued a notice that they were ready, willing, and able to complete the contract;

   5.the plaintiffs subsequently served a default notice and the defendant failed to remedy the default;

   6.the plaintiffs served a notice of termination (I note that there is a typographical error in [10] of the statement of claim, and I understand that it should be a plea that the plaintiffs served a notice of termination), and then terminated the contract pursuant to that notice;

   7.the plaintiffs subsequently sold the property to other parties; and

   8.the plaintiffs claim to have suffered loss and damage as a result of the defendant's breach of contract.

8. Mr James, on behalf of the plaintiffs, verifies the claims made in the Proposed Writ.

9. His first affidavit annexes the documents which are said to evidence the allegations leading up to and including the plaintiffs' termination of the contract.

10. The plaintiffs submit that the Proposed Writ may be served without leave pursuant to:

    (a)O 10 r 5(b)(iii);

    (b)O 10 r 5(b)(v); and

    (c)O 10 r 5(e).

11. I note that the 'heads' which I have just recited, nominated by the plaintiffs, are different in some respects from those which were included in the Originating Motion.

12. To be clear, I consider, from the material before the Court, that the heads now nominated by the plaintiffs in their written submissions, which I have just recited, do support the plaintiffs being able to serve the Proposed Writ outside of Australia without leave.

13. Further, the plaintiffs submit that they are not aware of any other matter which may impact on the Court's discretion to grant leave on an ex parte basis.

14. Having considered the Proposed Writ as verified, and the affidavits of Mr James, I consider, in line with those principles I outlined in CITIC Pacific Mining that I should make the following orders, being Orders 1 to 3 sought by the plaintiffs:

    1.Leave be granted to the plaintiffs pursuant to O 5 r 9 of the Rules of the Supreme Court to issue the writ of summons which was annexed as KJR-12 to the affidavit of Mr James made and filed 17 June 2025 (Writ).

    2.The Court accept the Writ for filing.

    3.A proper officer of the Court issue the Writ.

15. Further, I consider that when these reasons for granting leave are published, they should also be served on the defendant as soon as practicable, and I will make a fourth order to that effect.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IF

Associate to the Hon Justice Howard

1 JULY 2025

[1] CITIC Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd [2024] WASC 254 [18] ‑ [31].